[Federal Register Volume 59, Number 218 (Monday, November 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27979]


[[Page Unknown]]

[Federal Register: November 14, 1994]


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DEPARTMENT OF THE INTERIOR
[MD-034]

30 CFR Part 920

 

Maryland Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Maryland 
regulatory program (hereinafter referred to as the ``Maryland 
program'') under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). Maryland proposed revisions to and additions of statutes 
pertaining to sections 7-501 (Definitions), 7-504 (Operator's License), 
and 7-517.1 (Liability) of the Annotated Code of Maryland (Code). The 
proposed amendment would allow a ``limited liability company'' to 
become an operator of surface coal mining operations under Maryland's 
approved program.

EFFECTIVE DATE: November 14, 1994.

FOR FURTHER INFORMATION CONTACT:
Robert J. Biggi, Director, Harrisburg Field Office, Harrisburg 
Transportation Center, Third Floor, Suite 3C, 4th and Market Streets, 
Harrisburg, PA 17101. Telephone: (717) 782-4036.

SUPPLEMENTARY INFORMATION: 

I. Background on the Maryland Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Maryland Program

    On December 1, 1980, the Secretary of the Interior approved the 
Maryland program. Background information on the Maryland program, 
including the Secretary's findings, the disposition of comments, and 
the conditions of approval can be found in the December 1, 1980, 
Federal Register (45 FR 79449). Subsequent actions concerning 
conditions of approval and program amendments can be found at 30 CFR 
920.15 and 920.16.

II. Submission of the Proposed Amendment

    By letter dated May 31, 1994 (Administrative Record No. MD-568.00), 
Maryland submitted a proposed amendment to its program pursuant to 
SMCRA. Maryland submitted the proposed amendment at its own initiative. 
Maryland proposed to revise sections 7-501, 7-504, and 7-517.1 of its 
Code to incorporate the ``limited liability company'' into its 
definitions of ``operator'' and ``principal owner'' and to include the 
``limited liability company'' in the provisions of law relating to the 
licensing, regulation, and enforcement of open-pit mining operations.
    OSM announced receipt of the proposed amendment in the June 23, 
1994, Federal Register (59 FR 32388), and in the same document opened 
the public comment period and provided an opportunity for a public 
hearing on the adequacy of the proposed amendment. The public comment 
period closed on July 25, 1994.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed amendment.
    Revisions not specifically discussed below concern nonsubstantive 
wording changes, which are found to be no less stringent than SMCRA and 
no less effective than the Federal regulations.

A. Revisions to Maryland's Statutes That Are Not Substantively 
Identical to the Corresponding Federal Regulation

1. Section 7-501--Definitions
    a. At section 7-501(o) of the Code, Maryland is revising the 
definition of ``operator'' to mean any person, partnership, ``limited 
liability company,'' or corporation that removes or intends to remove 
more than 250 tons of coal from the earth by surface coal mining within 
12 consecutive months in any one location.
    The proposed State definition is identical to the Federal 
counterpart at section 701(13) of SMCRA except that the Federal 
definition does not expressly include limited liability companies. 
Because the State is clarifying the types of entities to which its 
definition applies, the Director finds the proposed revision at 7-
501(o) no less stringent that the Federal definition at section 701(13) 
of SMCRA.
    b. At section 7-501(v) of the Code, Maryland is revising the 
definition of ``principal owner'' to mean an owner or beneficial owner 
of at least 10 percent of a corporation, firm, partnership, ``limited 
liability company,'' or association.
    The Federal regulations do not define ``principal owner.'' Because 
the State is expanding the types of entities to which its definition 
applies, the Director finds the proposed revision at 7-501(v) not 
inconsistent with the general Federal provisions.
2. Section 7-517.1--Penalties
    At section 7-517.1, Maryland is requiring that whenever a 
corporation or ``limited liability company'' violates certain rules or 
regulations, any permit issued, or fails to correct a violation within 
a specified time, any officer, director, or agent of the corporation or 
``limited liability company'' who willfully and knowingly authorized, 
ordered, or carried out the violation of failure shall be subject to 
the penalty provisions of Maryland's Strip Mining Law.
    The Maryland amendment is no less stringent than 518(f) of SMCRA 
because it, like SMCRA, allows the State Regulatory Authority to assess 
penalties against individuals who are not assessed civil penalties 
under 518(a) of SMCRA and are normally shielded from personal liability 
for obligations of the entity. See Maryland Limited Liability Company 
Act, sections 4A-301 and 4A-302.

C. Revisions to Maryland's Statute With No Corresponding Federal 
Regulations

Section 7-504--Operator's License
    At section 7-504(b), Maryland is requiring that if an applicant for 
a license or renewal is a corporation, ``limited liability company,'' 
partnership, or association, the Director of the Bureau of Mines may 
not issue or renew the license if the Director finds that any officer, 
director, or principal owner of the corporation, ``limited liability 
company,'' partnership, or association has previously failed and 
continues to fail to comply with any provisions of this subtitle, or if 
any officer, director, or principal owner is or has been an officer, 
director, or principal owner of any other corporation, ``limited 
liability company,'' partnership, or association which has previously 
failed and continues to fail to comply with the specified provisions. 
If the applicant is a corporation, ``limited liability company,'' 
partnership, or association, the Director may not issue or renew the 
license if an officer, director, or principal owner of the corporation, 
``limited liability company,'' partnership, or association has 
previously forfeited any bond posted in connection with strip-mining in 
any state.
    At section 7-504(c)(1), Maryland is requiring that continued 
operation by the licensee at any other location shall include operation 
by the licensee directly, or operation by any corporation, ``limited 
liability company,'' partnership, or association of which the licensee 
is an officer, director, or principal owner, and which involves use of 
equipment or resources employed on the permit area in violation under 
this section.
    At section 7-504(c)(2), Maryland is authorizing the suspension of 
the license of any corporation, ``limited liability company,'' 
partnership, or association that is found to be a contributing factor 
in the persistent or repeated failure to comply with specified 
requirements under this section, and which failure caused the State to 
initiate permit revocation procedures.
    At section 7-504(d), Maryland is requiring that if it finds that 
any officer, director, principal owner, or resident agent is or has 
been an officer, director, principal owner, or resident agent of any 
other corporation, ``limited liability company,'' partnership, or 
association that has failed or continues to fail to comply with any 
provisions of this subtitle, it shall notify the operator and require 
corrective action within 30 days.
    SMCRA and the Federal rules do not require that an operator obtain 
a license. Licensing is a separate requirement from obtaining a permit, 
which is also required under the Maryland regulatory program. Since 
licensees can now be limited liability companies, it is appropriate 
that the licensing enforcement provisions be applicable to limited 
liability companies. Therefore, the Director finds the proposed 
revisions at 7-504(b)-(d) are not inconsistent with SMCRA and the 
Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on the proposed amendment. One public comment was 
received. The commenter stated that the amendment ``modifies the 
provisions relating to suspension of permits.'' This is not an accurate 
statement. The Maryland amendment is amending its licensing statute 
which provides for license suspension in certain situations.
    Licensing is a separate requirement from the permitting 
requirements found at section 7-505 of the Maryland Natural Resources 
Code. The permitting requirements of section 7-505 are not being 
revised by this amendment. The commenter felt that OSM should seek 
clarification from Maryland to determine whether the concept of the 
``limited liability company'' created any barrier against the 
enforcement of bond forfeitures, notices of violations or cessation 
orders, imposition of civil or criminal penalties, or of derivative 
liability under the ownership and control regulations. The commenter's 
concern is not supported by SMCRA. The Federal SMCRA and its 
implementing regulations already include limited liability companies 
within its scope. The definition of ``person'' found at 701(19) of 
SMCRA includes not only individuals, corporations, and partnerships but 
any ``other business organization.'' See also section 7-501 of the 
Maryland Code. A person must apply for a permit before mining may 
commence. See sections 7-505 of the Maryland Code and 506 of SMCRA. 
Nothing in the current State or Federal laws or regulations prevents a 
limited liability company from applying for permits. The amendment is 
intended to ensure that limited liability companies are included within 
the purview of the licensing provisions. Accordingly, Maryland's 
proposed amendment does not alter any of its approved ownership and 
control or enforcement provisions and will apply to the same extent as 
before. It should be noted that Maryland's ownership and control 
provisions, of which the commenter was particularly concerned with, 
were approved by OSM on December 2, 1991, and were found to be not only 
no less effective but with one exception, were substantively identical 
to the corresponding regulations (56 FR 61160). Further clarification 
is not required.
    Because no one requested an opportunity to speak at a public 
hearing, no hearing was held.

Federal Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited 
comments on the proposed amendment from various Federal agencies with 
an actual or potential interest in the Maryland program. No comments 
were received. The U.S. Department of Labor, Mine Safety and Health 
Administration; the Department of the Army, Corps of Engineers; and the 
Department of Interior, Bureau of Mines had no comments.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the EPA with respect to those provisions of the 
proposed program amendment that relate to air on water quality 
standards promulgated under the authority of the Clean Water Act (33 
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
    None of the revisions that Maryland proposed to make in this 
amendment pertain to air or water quality standards. Therefore, OSM did 
not request EPA's concurrence.

V. Director's Decision

    Based on the above finding(s), the Director approves the proposed 
amendment as submitted by Maryland on May 31, 1994.
    The Federal regulations at 30 CFR Part 920, codifying decisions 
concerning the Maryland program, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each such 
program is drafted and promulgated by a specific State, not by OSM. 
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State 
regulatory programs and program amendments submitted by the States must 
be based solely on a determination of whether the submittal is 
consistent with SMCRA and its implementing Federal regulations and 
whether the other requirements of 30 CFR Parts 730, 731, and 732 have 
been met.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions in proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(c)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
corresponding Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the corresponding Federal regulations.

List of Subjects in 30 CFR Part 920

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 28, 1994.
Richard J. Seibel,
Acting Assistant Director, Eastern Support Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 920--MARYLAND

    1. The authority citation for Part 920 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 920.15 is amended by adding paragraph (z) to read as 
follows:


Sec. 920.15  Approval of amendments to State regulatory program.

* * * * *
    (z) The following amendment, as submitted to OSM on May 31, 1994, 
is approved effective November 14, 1994. The amendment consists of 
revisions to the following statutes in the Annotated Code of Maryland:

7-501(o)..............................................  Definition.     
7-501(v)..............................................  Definition.     
7-504 (b)-(d).........................................  Operator's      
                                                         License.       
7-517.1...............................................  Penalties.      
                                                                        

[FR Doc. 94-27979 Filed 11-10-94; 8:45 am]
BILLING CODE 4310-05-M